In the case of commissioners on insolvent estates, it is the right and duty of the claimant and of the administrator or executor to insist that a setoff in favor of the estate against the claimant he brought to the attention of the commissioners and be applied against the claim presented. Where the commissioners do not apply the setoff, no subsequent action lies for the recovery of the estate's claim against the claimant unless he has consented to the procedure followed. The consent may be express or implied. Whether the same rules apply in the case of commissioners on solvent estates, quaere. At the hearing before commissioners appointed under 45-211 to pass upon a disallowed claim against a solvent estate, the claimant stated that any claim the estate had against the claimant should be treated as an asset of the estate. The commissioners announced that they would not consider the setoff which the executors asserted in behalf of the estate. Neither the executors nor the claimant protested or attempted to have the commissioners pursue a different course. The commissioners allowed $7800 of the claimant's $31,200 claim. In the present action upon the estate's $3600 claim, held: 1. The conclusion that the claimant, by implication at least, consented to having his claim acted upon without the application of the setoff could not be disturbed. 2. The rules governing action by commissioners appointed on an insolvent estate, even if applicable in the case of commissioners appointed on a solvent estate, did not require a holding that the award by the commissioners barred the estate's claim.
Argued May 14, 1963
Decided June 11, 1963
Action for money loaned, brought to the Court of Common Pleas in Hartford County and tried to the court, Lugg, J.; judgment for the plaintiffs and appeal by the defendant. No error.
Robert C. Danaher, for the appellant (defendant).
Robert N. Shea, with whom was Robert L. Brooks, for the appellees (plaintiffs).
The defendant herein, Joseph D. Rivkin, although not himself a lawyer, occupied space in the law offices of the plaintiffs' testator, Naaman Cohen. Under an arrangement which had existed for over ten years, the decedent had loaned money to Rivkin, Rivkin had rendered services to the decedent, and a running account of the transactions had been kept by the decedent. commissioners were appointed on the estate of the decedent, which was fully solvent, under 45-211 of the General Statutes, to act on a claim for $31,200 which Rivkin had presented against the estate and which the executors had disallowed. A hearing was held by the commissioners during which Rivkin was examined on the items of the running account, and it was agreed by counsel for both sides, on the conclusion of the testimony, that a letter could be sent the commissioners expressing a general statement of the figures and dates shown in the decedent's checkbooks covering the running account. Such a letter was subsequently sent the commissioners by Rivkin. At no time did Rivkin object to the presentation before the commissioners of the estate's claimed setoff against him which was evidenced by an outstanding balance against him in the running account.
The commissioners awarded Rivkin $7800 and reported to the Probate Court that they allowed that sum. The court accepted the report. Neither party appealed from the decision of the commissioners. The plaintiffs do not question that Rivkin is entitled to have $7800 allowed on his claim against the estate. In the present action, they sought to recover from Rivkin the estate's claim against him in the approximate amount of $3600. This is the amount which the plaintiffs had claimed before the commissioners as the sum Rivkin owed the estate.
The fundamental claim of Rivkin, as alleged in the special defense of his answer, is that, since no appeal was taken by either party, the commissioners' award to him of $7800 operates as a legal bar to the recovery in this action of any claim of the estate against him. From a judgment in favor of the plaintiffs in the amount of $3606.43, the defendant has taken this appeal.
We assume, without so deciding, that the parties are correct in treating the controlling law of this case as the same as it would have been had the commissioners been appointed on an estate represented as insolvent under 45-226 and chapter 789 of the General Statutes. See Caffrey v. Alcorn, 115 Conn. 605, 607, 162 A. 840; 2 Locke Kohn, Conn. Probate Practice 521.
That in some situations a difference exists between the powers and duties of commissioners appointed, as was the case here, on a solvent estate under 445-211 and those appointed on an estate which is being settled as an insolvent estate is pointed out in cases such as New Haven Savings Bank v. Warner, 128 Conn. 662, 667, 25 A.2d 50.
In the case of commissioners on insolvent estates, it is the right and duty, both of the claimant and of the administrator or executor, to insist that a setoff in favor of the estate against the claimant be brought to the attention of the commissioners and be applied against the claim presented; neither party has a right to require a different course without the consent of the other. Gregory v. Benedict, 39 Conn. 22, 24. Where the commissioners do not take into consideration the setoff of the estate against the claimant but allow the claimant the full